Marchelewicz v. Wehner, 91-185
| Decision Date | 25 September 1992 |
| Docket Number | No. 91-185,91-185 |
| Citation | 159 Vt. 310,618 A.2d 1293 |
| Parties | Mary Jane MARCHELEWICZ v. William WEHNER. |
| Court | Vermont Supreme Court |
Michael Marks and Pamela J. Fitzgerald of Lisman & Lisman, Burlington, for plaintiff-appellant.
James J. McNamara of McNamara, Fitzpatrick, McCormick & Mertz, P.C., Burlington, for defendant-appellee.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
This appeal arises out of a contract dispute between plaintiff-buyer Mary Jane Marchelewicz and defendant-seller William Wehner for the sale of Chipman Point Marina on Lake Champlain. The parties executed a purchase and sale agreement, but the transaction was never completed. Buyer sued seller to recover her $25,000 deposit on the property, claiming breach of contract, or in the alternative, unjust enrichment. Seller countered that buyer's failure to give timely notice of her desire not to go forward with the sale justified retention of the deposit. The case proceeded before a jury, but the trial court directed a verdict for defendant on the notice issue. It entered judgment in defendant's favor after a bench trial on the equitable issue, concluding that seller had not been unjustly enriched. Buyer appeals these rulings. We reverse and remand for a new trial.
Buyer signed the purchase and sale agreement on August 4, 1988. The contract called for closing on or before September 30, 1988, and required a deposit of $25,000. It also included the following mortgage contingency:
If, despite the best efforts of the Purchaser, the Purchaser is unable to obtain, by no later than ... August 30, 1988, from a bank or similar financial institution ... a written commitment for a mortgage loan to finance the acquisition of the Property, with funds to be available for disbursement on or prior to closing Date, ... THE PURCHASER SHALL HAVE THE RIGHT TO TERMINATE THIS CONTRACT AS IT RELATES TO THE MORTGAGE CONTINGENCY BY GIVING NOTICE TO THE SELLER NOT LATER THAN ... 72 HOURS AFTER SAID DATE AND TIME.
(Emphasis in original). Thus, according to the contract, buyer had to give notice not later than September 2, 1988, in order to terminate the contract. The "Terms and Conditions" printed on the form's reverse provided:
Default: If the purchaser shall fail to complete said purchase as provided herein, or is otherwise in default, the Seller may terminate this Contract, retaining all deposit money as agreed and liquidated damages, or may pursue the Seller's rights to all legal and equitable remedies provided by law....
The total purchase price was $625,000, and buyer sought financing for almost the entire amount. The agreement expressly provided that notices could be given orally. Because seller is deaf, buyer communicated exclusively with Calvin Robinson, seller's listing agent. Robinson drafted the agreement and retained the deposit.
During August 1988, buyer applied to commercial lenders at two banks for mortgage financing for the purchase. Unremarkably, both institutions required financial information about the marina before considering a loan. According to her testimony, she repeatedly asked Robinson during August for the records showing the historic financial performance of the marina. On August 29, 1988, because she had not received the pertinent records necessary for financing, Robinson prepared an "Addendum to Purchase and Sale Contract" which would have extended the deadline for satisfying the mortgage contingency until September 13, 1988. He obtained buyer's signature, but seller refused to sign it because he did not wish to extend the September 30 closing date.
Buyer continued her efforts to secure a loan after that date. She obtained a letter from a loan officer at the Vermont Federal Bank specifying the financial information he would require in order to process her loan application. Robinson brought the letter to seller and urged him to comply with the bank's request for information. Seller provided the financial information on September 20 or 21, but the loan request was denied because the cash flow from the business could not reasonably support the mortgage payments. Buyer requested release of her deposit, but seller declined.
Buyer testified that before the September 2 financing deadline, when she learned seller...
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